Implementing social distancing measures such as one-way systems and spaced out desks is one step towards ensuring workers’ safety, but it is clear that tech is having a big role to play in the next phase of this pandemic and (of course) well beyond.

As well as contact tracing apps and contactless thermal scanners, which we have previously written about in our articles available here and here, other tech solutions available to employers include the following:

• Desk allocation software assists employers to implement social distancing in the office by requiring employees to book a desk to sit at, thus ensuring that employees are only able to sit in desks that are an acceptable distance from each other.  This also facilitates effective contact tracing by acting as a record of which worker sat where, therefore enabling employers to ascertain who needs to be alerted if another employee becomes ill.

• Once workers are in the building, employers can oversee the impact of their social distancing measures using sensors that analyse the movement of workers around the office, alerting them to areas that become problematic to practically enforce such measures.

• Contactless technology was on the rise pre-Covid thanks to its speed and ease of use, but due to the increased risk of contamination of the virus via touching, contactless technologies have a specific benefit when considering how to create a safe working environment. For example, using smart swipe cards or smartphone technology to enable workers not only to gain access to the building but also to know where that user sits and to call a lift to the correct floor, meaning the worker doesn’t have to use buttons to call for the lift or to select their destination.

• Social distancing wearable technologies can be worn by workers to alert them when they are in close proximity to another office user, helping employers to effectively implement social distancing measures in the office. Companies such as Samsung have started adding this technology to their existing product range, whereas there are products emerging now that have been designed specifically for this purpose. These ‘wearables’ allow workers to navigate social distancing boundaries while in a relatively confined space and also allow employers to understand how successful the implementation of their social distancing measures have been.

These are just some examples of how technology can help employers but there are important privacy issues to consider when implementing solutions that process employee personal data, as many of these do.

Surveillance

Many of these technological solutions include some form of surveillance on personnel. This is not normally a word people like to associate with their place of work, with pre-Covid studies having shown that most workers find the idea of being tracked in the workplace unacceptable.  However, with employers under a duty to maintain a safe working environment for their employees, some of these surveillance measures may become the best way to achieve that.  To help employers manage this complex area, the ICO has published guidance on using surveillance methods during the Covid-19 pandemic and they key issues to consider.

• Necessary, justified and proportionate: Any surveillance of an employee needs to be necessary, justified and proportionate. This will differ from employer to employer, and so it is important for employers to consider what is required in their workplace.

The ICO sets out what should be considered when deciding if the method of monitoring is justified:

• establishing the benefits of the method of monitoring;

• considering any alternative method of monitoring; and

• weighing up these benefits against any adverse impacts on staff.

Regular reviews of the methods in use are needed to ensure they still achieve their intended purpose.

• Transparency: employers must be clear with personnel as to what they are doing and why they are doing it.  The ICO recommends that employers explicitly inform their staff of any changes to existing policies on surveillance, and that notices are used to clearly inform employees about the nature and extent of the surveillance and its purpose.

• Privacy Notices: Organisations should have clear and accessible privacy information in place before the processing of personal data begins. However, the ICO recognises this may not always be possible in exceptional circumstances.  Organisations are encouraged to ensure that privacy notices are in place and updated as soon as reasonably practical.

Automated decision-making

Some of these solutions may also allow for decisions to be made automatically using AI. As discussed in previous articles such as here, there are various data protection issues to consider when using automated decision-making processes. As well ensuring any use of software is GDPR compliant, the ICO has made clear that organisations must treat people fairly when making decisions based on personal data, and that a fair approach is taken to ensure there are no discriminatory practices at play.  

The recent decision by the Home Office to stop using a decision-making algorithm to determine visa applications, due to claims that it is inherently racist, is claimed to be the first successful challenge in the UK to an AI decision-making system on this basis.  Similarly, algorithms used by exam regulators to determine students’ A level exam grades has received wide-ranging criticism for containing bias against students from disadvantaged backgrounds.  Employers should pay particular attention to any automated decisions made using AI and ensure that any automated decision-making process used can be explained to personnel.

An overview of recent guidance published by the ICO and the Alan Turing Institute for business on how to explain decisions that have been made by AI technology can be found here.     

Data protection steps

As part of its Coronavirus recovery series, the ICO has also set out key data protection steps that organisations need to consider, so organisations should will take these principles into account when considering how technology is used as part of a return to work strategy:  Only collect and use what’s necessary and ensure you use the minimum amount of information required; be clear, open and honest with personnel about their data; treat people fairly when making decisions based on their data; keep information secure (of course!); and ensure staff can exercise their information rights.

If you would like help or advice on your return to work (or working from home) strategy to ensure it is legally compliant, please do get in touch.